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Listing the Correct Inventors on a South African Patent Application: Big Deal or Not ?

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When filing a patent application, the person or persons who invented the invention described in the application must be listed on the application forms. In addition, the Applicant(s) which will eventually become the patentee(s)/ owner(s) of the patent must be listed. The Applicants are not necessarily the same persons as the inventors. More often than not the Applicant is a company which has obtained the right to apply for the invention from the inventor(s). In such a case, an Assignment of Invention showing how the Applicant obtained its rights from the inventors must be submitted as well. The Assignment should list and must be signed by all inventors.

As part of the formal filing requirements, every South African provisional and complete patent application must be accompanied by a Declaration and Power of Attorney (also known as a Patents Form P3) signed by the Applicant(s). A part of this Form P3 reads:

  1. the Inventor(s) of the abovementioned invention is/are the person(s) named above and the applicant(s) has/have acquired the right to apply by virtue of an assignment from the inventor(s);

By signing this form, the Applicant therefore acknowledges that the inventors named thereon are those that are listed. Should it later transpire that, for example, one inventor was not listed as such, this may form a ground for revocation of the granted patent, depending on how it came about that the inventor was not listed. If it was simply an oversight or a clerical error, this can be remedied by correcting the application forms by adding the inventor and submitting a corrected Assignment of Invention and Patents Form P3.

Should an inventor however have knowingly been left off the patent application, the Applicant has made a material misrepresentation when signing the Patents Form P3 and the Assignment of Invention will be defective in that the Applicant has not obtained the entire right to apply for the patent. In this case, not naming the inventor can form a ground for revocation of the patent.

Being an inventor who is named on a patent application and later on a granted patent is also a matter of pride to many scientists who are actively involved in developing new technologies. In addition, employers may offer incentive payments to persons who are named as inventors on a patent. Not naming an inventor can therefore have financial consequences for that individual.

The inventor has a personal right to be named as such should he or she have invented or contributed to a new invention. Think of the many inventors who have become household names such as Thomas Edison, Alexander Graham Bell, Nikola Tesla, Henry Ford, Leonardo da Vinci, Alexander Fleming, Louis Pasteur and the Wright brothers. Their names have become synonymous with the inventions they made and not having been named as the inventor would indeed have been a big deal.

For more information on intellectual property contact Hahn & Hahn at [email protected].

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